Failure Is Not An Option?

An essay by James A Graves, Jr.

I suspected recently that I had an epiphany, but I wasn’t certain.

It was the first time I ever recalled using the word ‘epiphany’ and never in reference to myself.

I wanted to be certain that I was actually having an epiphany (and that it wasn’t harmful) so I looked it up. Merriam-Webster’s On-line Dictionary defines ‘epiphany’, in part, as “A: (1) a usually sudden manifestation or perception of the essential nature or meaning of something (2) an intuitive grasp of reality through something (as an event) usually simple and striking (3) an illuminating discovery, realization, or disclosure. B: a revealing scene or moment.”

That pretty much summed it up. So, I decided that I had, most certainly, experienced an epiphany. Although, I think I prefer ‘realization’. Epiphany sounds too much like something requiring medical attention.

I was reading a Nov 19, 2009 article in The Christian Science Monitor, written by Warren Richey, when my ‘realization’ occurred. The article reports part of the battle to prosecute terrorists held at Gitmo in federal court instead of a military court.

Mr. Richey reported that, Attorney General Eric Holder told the Senate Judiciary Committee on Wednesday that "failure is not an option" in the prosecution of accused 9/11 mastermind Khalid Sheikh Mohammed in a New York City courtroom.

Mr. Holder made the comments in response to questions about whether he had considered the possibility of an acquittal.

"What I told the prosecutors and what I will tell you is that failure is not an option. These are cases that have to be won," Holder said. "I don't expect that we will have a contrary result."

“The comment prompted a sharp response from Sen. Charles Grassley (R) of Iowa. "I don't know how you can make the statement that failure to convict is not an option when we have juries in this country," Senator Grassley said. "I'm a farmer not a lawyer, but I just want to make that observation."

It was a remarkable exchange, and at that point I was taken back to research I did for my third book, Assembly Line Justice – The American Drug War.

I discovered an interesting aspect of the federal judicial system that I had never imagined. Statistics showed that federal prosecutors have a 95% or higher conviction rate. That seemed an amazingly high number. And I doubted that defense attorneys could be that incompetent at the federal level.

As I dug further I discovered that federal judges and prosecutors relied on the gullibility of American jurors to ensure success.

That gullibility stems from America’s history and the confidence that Americans had in their leaders. Americans had good reason to trust their government; the US Constitution provided freedom and security, and time and time again the US government came through to protect and guarantee that freedom and security.

When choosing jurors, federal prosecutors make certain that jurors are selected based on a profile of an individual that is the product of generations of Americans who believe their government would never do anything contrary to the law or anything that is not in the best interest of America.

After all, everyone is aware that the American legal system is based on the premise that the accused is innocent until proven guilty. Consequently, it follows that the US government would never go to so much trouble and expense to prosecute someone in federal court unless they were certain the accused was guilty.

That gullible mindset is what federal judges and federal prosecutors depend on to ensure a guilty verdict from federal juries.

When intimidation is factored into the mix, using lectures from the federal prosecutor and the presiding judge during the initial jury seating process to ‘educate’ the jurors in the official procedures, with a heavy emphasis on how important each juror is to the federal legal process, a guilty verdict is almost guaranteed.

By the time the trial begins, jurors either feel empowered with a duty to help make America a safe place to live by making certain the criminal on trial ends up behind bars, or they are so intimidated by the whole process that they are afraid to offer a not-guilty vote.

My brief exposure to federal prosecutors, judges, US marshals, DEA agents and others within the federal judicial system revealed an arrogance that I was at a loss to explain until I discovered the process behind the high federal conviction rate.

My realization occurred when I applied my knowledge of the federal judicial system to the testimony of US Attorney General Eric Holder before the Senate Judiciary Committee on Nov 19, 2009.

Here was the highest lawyer in the land, a man who had spent much of his career within the federal judicial system, smugly confident that the percentage of success was always on his side. The process of American law established by the US Constitution for the accused to be innocent until proven guilty means very little in his world.

It might as well be “guilty until proven innocent”. The results would be no different. Holder’s statement that “failure is not an option” in the prosecution of terrorists (or any other suspected offender for that matter) makes perfect sense. It was simply a display of the arrogance that I had previously observed from his peers, publicly stated by Eric Holder before God and everybody during a US Senate Judiciary Committee hearing.

Obviously, Senator Grassley’s response to Holder’s comment shows that the senator is unaware (at least, publicly) of this particular aspect of the federal judicial system.

It is a sad commentary on the state of our country, specifically the federal judicial system, because one must consider that the attorney general is nothing more than a lawyer, albeit a very high placed one.

And it is important to remember that many of the politicians that are presently serving in Washington DC are also nothing more than lawyers.

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